Savoy v Insurance and Care NSW [2020] NSWSC 133

Savoy v Insurance and Care NSW [2020] NSWSC 133

The appeal failed because it was reasonably open to the magistrate to admit Mr McDonald's statement, the ASIC records and other evidence supported the finding that Ms Savoy was a director at the relevant time, the absence of a signed consent under s 201D did not invalidate her appointment where actual consent was found, no legal error was shown in the treatment of the ASIC record or Jones v Dunkel inference, and Ms Savoy did not establish any exclusion from culpable director liability under s 145A(5).

Jurisdiction
Australia
Judgment Date
27 February 2020
Procedural Posture
Appeal From Local Court of NSW at Sydney Civil Decision Concerning Recovery of Workers Compensation Payments From Alleged Culpable Directors / Supreme Court Appeal on Questions of Law Under S 39 of the Local Court Act 2007 (nsw) and Application for Leave on Mixed Questions of Fact and Law Under S 40
Outcome
Leave granted in part; summons dismissed; plaintiff ordered to pay the first defendant's costs in the Supreme Court.
Legal Topics
['appointment and Resignation of Company Directors' 'absence of Signed Consent to Act as Director' 'asic Register as Prima Facie Evidence' 'admissions Made With Authority or in Furtherance of a Common Purpose' 'jones V Dunkel Inference' 'culpable Director Liability for Uninsured Employer']
['corporations Law' 'evidence' 'workers Compensation' 'civil Procedure' 'appeals'] ['appointment and Resignation of Company Directors' 'absence of Signed Consent to Act as Director' 'asic Register as Prima Facie Evidence' 'admissions Made With Authority or in Furtherance of a Common Purpose' 'jones V Dunkel Inference' 'culpable Director Liability for Uninsured Employer']

Case Brief

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Procedural Posture

Appeal From Local Court of NSW at Sydney Civil Decision Concerning Recovery of Workers Compensation Payments From Alleged Culpable Directors / Supreme Court Appeal on Questions of Law Under S 39 of the Local Court Act 2007 (nsw) and Application for Leave on Mixed Questions of Fact and Law Under S 40

Legal Issues

  1. 1 ['Whether ICNSW established that Ms Savoy was validly appointed a director of Tornado Towing Pty Ltd.' 'Whether Ms Savoy remained a director as at 1 December 2015.' "Whether Mr McDonald's statement was admissible against Ms Savoy under s 87 of the Evidence Act 1995 (NSW)." 'Whether the magistrate erred in relying on ASIC records under s 1274B of the Corporations Act 2001 (Cth).' "Whether the magistrate erred in drawing an adverse inference from Ms Savoy's failure to call Mr McDonald and the company's accountant." 'Whether Ms Savoy established an exclusion from being a culpable director under s 145A(5) of the Workers Compensation Act 1987 (NSW).']

Ratio Decidendi

The appeal failed because it was reasonably open to the magistrate to admit Mr McDonald's statement, the ASIC records and other evidence supported the finding that Ms Savoy was a director at the relevant time, the absence of a signed consent under s 201D did not invalidate her appointment where actual consent was found, no legal error was shown in the treatment of the ASIC record or Jones v Dunkel inference, and Ms Savoy did not establish any exclusion from culpable director liability under s 145A(5).

Court Disposition

Leave granted in part; summons dismissed; plaintiff ordered to pay the first defendant's costs in the Supreme Court.

Orders

  • ["Grant leave to the applicant, to the extent necessary, to extend ground (2) to allow her to challenge the application of Jones v Dunkel in relation to her failure to call her co-director and the company's accountant." 'Dismiss the summons filed on 27 June 2019.' 'Order that the plaintiff pay the costs of the first...